When you purchase a freehold in the UK, you have outright ownership of both the property and the land beneath it. A flying freehold exists when part of the property extends, protrudes or overhangs your neighbour's property.

Freehold problems may occur between you and the other property owner when it comes to repairs, development and future saleability.

What happens if you own a property with a flying freehold and want to build on neighbouring land? What do you do if you want to enforce repairs on a flying freehold but have an unwilling neighbour? How would you sell a house with a flying freehold? And are flying freeholds worth purchasing in the first place? There are a lot of questions to consider.

What is a flying freehold?

A flying freehold (also known as a creeping freehold) is when part of the property either overhangs or lies beneath a neighbour's freehold property, land or airspace. Contrary to its name, the property doesn't need to be mid-air to be a flying freehold. In fact, there are many different types of flying freehold properties.

Common examples of flying freeholds include:

• Balconies overhanging a neighbouring property, including the garage.
• Basements or cellars that go underneath a neighbouring property.
• Properties that rely on the support of other adjoining properties, for example if they're situated on steep hills.
• Maisonettes or houses where part of the property with a flying freehold physically rests under or over another freehold.
• A room situated above a shared passageway.

How common are flying freeholds?

Most of the time homeowners don't even realise they live in or next to a flying freehold. Only when they come to sell or remortgage the property do they find out and run into potential selling issues.

Problems may also arise if you want to repair, renovate or redevelop your home but your flying freehold property extends into someone else's land. The other owner might refuse to approve the renovations, which may lead to tension between neighbours, and also cause potential damage to your property if you're unable to make necessary repairs.

Rights of support

If one adjoining property relies on the support of another, the dominant property will have rights of support, which means they have the right to build on the land supporting the dependent property.

Some adjoining properties like semi detached buildings will have mutual rights of support because there is no dominant property. This can cause conflict about who has the right to build on the land, or indeed refuse approval to build.

Concerns about flying freehold properties

One of the biggest concerns about owning a flying freehold property is future saleability, which will usually come to light during the conveyancing process. Conveyancing solicitors often err on the side of caution when it comes to flying freeholds.

Legal concerns

Although flying freeholds are usually not a huge issue when you're living in the property, a conveyancing solicitor may flag that your property is a flying freehold if you want to sell. The main reason for their concern is the lack of positive covenants (or positive obligations)** **one freeholder may have over another.

Positive covenants are clauses in a contract that require certain actions to be taken. If your contract doesn’t contain any positive covenants with regards to your flying freehold, this can become legally complex.

To find out more about positive and negative covenants, you can take a look at one of our previous blogs here.

The most common problem is renovation works and repairs, where you and the non-selling owner can't agree on the work that needs to be done. Other issues include refusal of access, costs and protests, all of which can cause a whole lot of stress and trouble for everyone involved.

Theory vs reality

Despite the legal concerns, the reality can be much less of a hassle. For legal problems to emerge, the adjoining property will have to be so mismanaged it's bad enough to affect your property, which is often very unlikely. Most freeholders will maintain the upkeep of their properties, especially if it's the biggest asset they have.

However, if problems with the flying freeholds arise before a sale goes through, there can be issues determining whose responsibility it is for carrying out repairs for the next owners.

Future owners

When a new owner moves in, it's strongly advised to build a good relationship between the two homeowners involved. If the original and subsequent owners are on good terms, it will likely make any future issues much easier to resolve.

If you're moving into a flying freehold, you should seek advice with regards to what your rights of access are, how you can repair future damage and if you can build on the other's land.

Obtaining a flying freehold mortgage

Some mortgage companies may be reluctant to give mortgages to property with a flying freehold. However, it's not impossible to obtain a freehold mortgage, as many lenders will examine freehold properties on a case-by-case basis. They'll want to know if the property has legal protection and entry to carry out repairs, along with a scheme of enforceable covenants.

Some mortgage lenders will lend if the flying freehold doesn't exceed 15% of the total floor area of the building. The lender may also want the flying freeholder to take out an insurance policy as protection against loss if they can't carry out repairs.

This however, does not guarantee a future lender will approve a mortgage, so it's always important to look at all your options before continuing with the purchase.

Positive covenants and future owners

Because positive obligations don't bind future owners of freeholds, it's important to examine the legal titles to both the subjacent land and the property with a flying freehold.

Ideally, the subjacent owner will have a legal obligation in the title deeds to physically support and repair the flying freehold. This however is not always the case.

It's also useful if the title deeds requires the subjacent owner to contribute towards the costs of any repair works involving the flying freehold.

Flying freehold indemnity insurance

Deed of Mutual Grant and Covenant

If the title deeds don't cover these issues, you and the subjacent owner can enter a mutual agreement known as Deed of Mutual Grant and Covenant. This agreement ensures the appropriate rights and covenants are included on the legal titles.

Title indemnity insurance

Sometimes, these solutions might not work. In which case, you can apply for title indemnity insurance.

Title indemnity insurance was designed to cover the loss of value to a property if you're unable to make necessary repairs due to any adjoining properties that are uninsured. It also protects your property if damage has been caused due to lack of upkeep from the adjoining property.

Remember this type of insurance covers cost and value damage; it doesn't resolve any legal disputes between you and other neighbouring properties with flying freeholds.

Other solutions

Another possible solution is to convert the flying freehold to an alternative structure known as a leasehold structure. This creates only one freehold, while the other becomes a leasehold property with a long lease (999 years) granted to the adjoining owner.

This gives adequate rights of support and positive covenants for all parties involved and protects them if the freehold or leasehold is sold in the future. This may, however, be a lengthy and expensive process, so it's good to seek advice if you're unsure about this area of property law.

Access to a neighbouring property

The Neighbouring Land Act 2002 states property owners are granted the right to access a neighbouring property so they can carry out repairs to their own property.

However, it doesn't give the owner any legal rights to make repairs to the neighbouring property, which can cause issues if the adjoining property is damaging the flying freehold owner. Buyers are therefore advised to not rely on this solution when considering to purchase a freehold property.

Summary: Be nice to your neighbours!

If you're living in adjoining premises, you may be a flying freeholder without even realising. A flying freehold exists when part of the property creeps into a neighbour's garage, freehold land, shared passageway, or other part of the property.

As a flying freeholder, it's always better to be on good terms with your neighbours. This helps when it comes to any disputes over title deeds, positive covenants and legal rights. And if you have any concerns or questions, make sure you seek legal advice as and when you need it.

If you're thinking about selling your home, you can use our Estate Agent Comparison Tool to find the best agent to meet your needs. Check it out here.